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Walling Off Liberty: How Strict Immigration Enforcement Threatens Privacy and Local Policing

During his campaign, Donald Trump vowed to aggressively ramp up immigration enforcement by implementing “extreme vetting,” building a wall along the southern border, cracking down on so-called “sanctuary cities,” and creating a “deportation force.” President Trump and his allies took steps to implement some of these proposals shortly after his inauguration. There are ample reasons for concern over how such efforts will impact America’s law enforcement agencies and Americans’ civil liberties.

In order to be effective, the president’s proposals require the federal government to gather more information about American citizens. Border Patrol will increase its presence both at the border and at interior checkpoints, inconveniencing Americans and foreigners alike. Immigration law enforcement officials will exploit the lack of privacy protections at the border, leading to citizens being pressured into providing authorities with access to their electronic devices. The federal government will increase surveillance and explore new tools, such as facial-recognition drones. Federal immigration officials will expand databases and include biometric information on both visitors and American citizens.

Trump’s pledge to crack down on sanctuary cities runs afoul of the Tenth Amendment, while proposals to expand the class of removable aliens and deputize state and local law police officers threaten to undermine effective policing.

Although the president could take steps to reverse many of the damaging features of his immigration policy, such a reversal is unlikely. However, policymakers can mitigate the risks of the immigration agenda by strengthening legal protections on the border and limiting federal involvement in state and local policing.

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Introduction

During his campaign, Donald Trump vowed to aggressively ramp up
immigration enforcement. Among the most notable of the president’s
proposals were an “extreme vetting” procedure for those seeking
admission to the United States, a wall along the southern border, a
crackdown on so-called “sanctuary cities,” and the creation of a
“deportation force.”1 Once in office, President Trump took
steps to implement some of these proposals and Republican lawmakers
in Congress introduced legislation to enact others.2 Even though
the number of deportations and illegal attempted border crossings
dropped, the administration’s increased immigration enforcement
efforts show no signs of slowing down.3 There are
ample reasons for concern over how such efforts will impact
America’s law enforcement agencies and Americans’ civil
liberties.

In order to be effective, the president’s proposals require the
federal government to gather more information about American
citizens. Border Patrol will increase its presence on the border
and at interior checkpoints, inconveniencing Americans and
foreigners alike. Immigration law enforcement officials will
exploit the lack of privacy protections at the border, leading to
citizens being pressured into providing authorities with access to
their phones, laptops, and other electronic devices. The federal
government will increase surveillance and explore new tools such as
facial-recognition drones. Federal immigration officials will
expand databases with an increasing amount of data, including
biometric information, on visitors and American citizens. These
databases and surveillance tools would need to be deployed to
provide federal authorities with the data-gathering architecture
for deportations.

In addition, Trump’s pledge to crack down on sanctuary cities
requires that the federal government erode local control over law
enforcement, while additional proposals to expand the class of
removable aliens and deputize state and local law police officers
threaten to undermine effective policing.

Border Enforcement and Privacy

Trump’s plans to hire additional Border Patrol agents and
increase the number of intrusive surveillance tools at ports of
entry are a threat to the privacy of everyone who lives or works
within 100 miles of the border. Not long after his inauguration,
the president took steps to fulfill his immigration commitments via
executive orders, and the increased number of searches of phones
and other electronic property are already having an impact on
Americans’ privacy. Meanwhile, facial-recognition drones and other
surveillance technologies, as well as vastly expanding databases,
are an emerging threat to Americans’ civil liberties.

Border Patrol Abuses

In February 2017 Trump directed the Customs and Border
Protection (CBP) commissioner to hire 5,000 more Border Patrol
agents via executive order.4 Given that the Border Patrol has a
history of abuses, this increase in Border Patrol agents will
likely exacerbate the kind of violations documented at the border
and the interior.5

Since 9/11, Border Patrol’s tactics have become increasingly
militarized.6 In recent years, some border agents have
needlessly resorted to deadly force. In some cases where
individuals have thrown rocks at Border Patrol agents, the agents
responded with lethal force, despite being safe in their vehicles
during the attack.7 As one Department of Homeland Security
(DHS) official told Politico, “[Border Patrol] has created
a culture that says, ‘If you throw a rock at me, you’re going to
get shot.’”8

This military mindset is particularly concerning in an agency
that has a well-documented history of being among the most ill
disciplined and abusive of the federal government’s large law
enforcement agencies. From 2006-2016 Border Patrol had a higher
discipline or performance termination rate (0.71 percent) than
CBP’s Office of Field Operations (0.47 percent); the Bureau of
Prisons (0.46 percent); Immigration and Customs Enforcement (0.36
percent); the Federal Bureau of Investigation (0.14 percent); and
the Drug Enforcement Administration (0.11 percent).9

Terminated Border Patrol agents were involved in excessive use
of force as well as corruption. In 2012, CBP, the Border Patrol’s
parent agency, commissioned a report on use-of-force policies but
reportedly took steps to conceal its findings once it was
completed.10 The report was highly critical of CBP,
which only sent House and Senate oversight committees summaries of
the report.11 These summaries did not include some of
the most shocking findings, namely, that “some border agents stood
in front of moving vehicles as a pretext to open fire and that
agents could have moved away from rock throwers instead of shooting
at them.”12

The CBP initially rejected two praiseworthy recommendations:
“barring border agents from shooting at vehicles unless its
[sic] occupants are trying to kill them, and barring
agents from shooting people who throw things that can’t cause
serious physical injury.”13 It was only after the Los Angeles
Times got its hands on the report that CBP revised its
use-of-force policies to require agents to reasonably believe that
thrown rocks pose a risk of imminent death or serious
injury.14 This policy merely codified existing
law, but may have been necessary to spell out, given that for years
Border Patrol had developed an unofficial policy of treating all
rock-throwing incidents as lethal threats.15

The agency’s use of deadly force was recently litigated to the
Supreme Court. In 2010, Sergio Adrián Hernández Güereca, a
15-year-old Mexican citizen, was playing with a group of friends in
a culvert between El Paso, Texas, and Ciudad Juárez,
Mexico.16 Hernández and his friends dared each
other to run to the American fence and back.17 Jesus Mesa,
a Border Patrol agent, seized one of the boys.18 Hernández,
who was unarmed, ran past Mesa, who then shot the teen in the
head.19 Mesa was in the United States when he
shot Hernández, who was in Mexico.20 Mesa claimed that Hernández and
the other boys threw rocks at him-a claim refuted by cell phone
footage captured by a passerby.21 The Supreme Court vacated and
remanded the case to the Fifth Circuit, declining to resolve
associated Fourth Amendment issues.22

But CBP abuses are hardly restricted to the border or to foreign
nationals. From January 2010 to May 2016, 53 people died during
encounters with the agency, 48 of them from use of force or
coercion.23 At least 19 of those were American
citizens.24 Some of the use of force incidents that
led to these deaths were clearly justified, but others are less so.
During one of these incidents a Border Patrol agent shot a 19-year
old American in the back as he tried to flee to Mexico following a
car chase.25 A Department of Justice report found
that the agent shot the teen while he was shooting at another male
on the fence, who was reportedly throwing rocks.26

In Southwest Arizona, up to 75 miles from the border, interior
checkpoints and other immigration enforcement efforts have created
a militarized zone, with ever-present agents, helicopters, and
surveillance equipment, according to CBP documents that the
American Civil Liberties Union obtained under the Freedom of
Information Act.27 These documents reveal that, between
2011 and 2014, residents of the Tohono O’odham Nation, a Native
American tribe, were the subject of illegal searches, intimidation,
and harassment.28 One complaint described a school bus
being stopped dozens of times, and the children forced to wait in
100-degree heat while their belongings were searched.29

The American Civil Liberties Union report also revealed the
existence of a CBP practice that agents call “shotgunning.”
Shotgunning is when agents stop motorists-immigrants and citizens
alike-without reasonable suspicion and justify the seizure after
the fact. Two Border Patrol whistleblowers revealed the tactic in
2008, but it continued regardless30

Border Exceptions to the Fourth Amendment

Although Border Patrol does dedicate resources to patrolling the
line between the United States and its neighbors, its agents can
treat territory far into the interior as if it is a border
crossing. Thanks to federal law and Supreme Court precedent, CBP
agents can search vehicles within 100 miles of the border,
including the coastlines, as part of their mission to prevent
illegal immigration.31 About two-thirds of Americans live
within 100 miles of U.S. boundaries (see Figure 1).32 The CBP has
set up checkpoints within this 100-mile zone, asking drivers if
they’re American citizens. In addition, CBP can search electronic
devices at international airports without reasonable suspicion or
probable cause.33 These two exceptions to the Fourth
Amendment pose a significant risk to the civil liberties of
Americans as well as immigrants.

Figure 1
Customs and Border Patrol area of operations

Source: American Civil Liberties Union. Map of the
100-mile border zone within which Customs and Border Patrol agents
can search vehicles during investigations into illegal immigration
without a warrant or probable cause.

The Supreme Court considered fixed interior checkpoints in the
1976 case United States v. Martinez-Fuerte.34 In that
case, the Court ruled that fixed interior checkpoints do not
violate the Fourth Amendment, which protects people in the U.S.
from “unreasonable searches and seizures.”35 The Court
also held that referring motorists to secondary inspection at a
checkpoint in large part because of their “Mexican ancestry” does
not violate the Constitution.36

In his dissent, Justice William Brennan (joined by Justice
Thurgood Marshall) criticized “the continuing evisceration of
Fourth Amendment protections.”37 Brennan correctly predicted the
impact that the case would have on Mexican Americans: “Every
American citizen of Mexican ancestry, and every Mexican alien
lawfully in this country, must know after today’s decision that he
travels the fixed checkpoint highways at the risk of being
subjected not only to a stop, but also to detention and
interrogation, both prolonged and to an extent far more than for
non-Mexican appearing motorists.”38 This fear is all the more
pronounced given the current administration’s policy
priorities.

After all, interior checkpoints are more successful at enforcing
nonimmigration laws against American citizens, particularly drug
laws, than enforcing immigration laws against illegal
immigrants.39 At interior checkpoints in Yuma Sector,
which includes about 180,000 square miles of terrain in southwest
Arizona, southeast California, and Nevada, American citizens were
arrested at a rate almost eight times higher than noncitizens in
2013.40 These checkpoints contribute very
little to immigration enforcement. According to CBP statistics from
2013, interior checkpoints in the Tucson Sector, the Border Patrol
region that includes all of Arizona not covered by Yuma Sector,
were responsible for only 0.67 percent of the sector’s
apprehensions that year.41

That CBP tramples on American citizens’ rights is not a recent
or isolated phenomenon. In 1993 Ninth Circuit judge Alex Kozinski
noted in a dissent that, “There’s reason to suspect the agents
working these checkpoints are looking for more than illegal aliens.
If this is true, it subverts the rationale of
Martinez-Fuerte and turns a legitimate administrative
search into a massive violation of the Fourth
Amendment.”42 Unfortunately, the border and the
bloated 100-mile “border zone” are not the only places where
immigration enforcement has eroded civil liberties.

Searches at Ports of Entry

Cell phones and laptops contain troves of intimate details about
our private lives. Family photos, romantic text messages, social
media accounts, calendars, and much more can be found on these
devices, which the majority of American adults own.43 For young
Americans in particular, smartphones are appendages necessary for
an ordinary, modern social life.44

Yet at ports of entry, these ubiquitous devices enjoy almost no
protection. This border exception to the Fourth Amendment is being
exploited by the Trump administration in the name of national
security and immigration enforcement. These searches put Americans’
privacy at risk. Fortunately, Congress could take steps to stop CBP
looking through electronic devices without probable cause.

At the border or ports of entry, CBP officers enjoy an exception
to the Fourth Amendment, which protects against “unreasonable
searches and seizures.”45 This exception was summed up by Chief
Justice William Rehnquist, who in United States v. Ramsey
(1977) stated, “[S]earches made at the border … are reasonable
simply by virtue of the fact that they occur at the
border.”46

The number of searches of cell phones, laptops, and other
electronic devices at the border and ports of entry has increased
during the Trump administration.47 From October to March in FY 2016,
there were 8,383 international arrivals that were processed with
electronic device searches. From the same time period in FY 2017
there were 14,993, a roughly 80 percent increase.48 Trump
administration officials believe these searches play an important
role in investigating and preventing terrorism.49 However,
then DHS secretary John Kelly did not cite a single example of a
warrantless electronic device search preventing terrorism when
questioned by Sen. Rand Paul (R-KY) in April 2017.50

Some Americans might think that they can avoid warrantless
searches by avoiding terrorist hotspots. This is not the case.

On January 31, 2017, Sidd Bikkannavar, an American citizen,
landed at Houston’s George Bush Intercontinental Airport. He had
been in Chile to indulge in one of his hobbies-racing solar-powered
cars. Despite being an American citizen and a member of CBP’s
program for “pre-approved, low-risk travelers,” a CBP officer
escorted Bikkannavar to an interview room.51 A CBP
officer asked Bikkannavar to reveal his phone’s
passcode.52 Although Bikkannavar told the officer
that the phone included sensitive information related to his work
for NASA, the agent persisted, and Bikkannavar eventually provided
the passcode.53 CBP analyzed Bikkannavar’s phone and
found nothing of interest.54 Bikkannavar deactivated his social
media accounts following the incident out of fear that they were
compromised.55

Citizens leaving the U.S. can also be need
lessly delayed by CBP officials conducting warrantless searches. In
February 2017, customs officers stopped Haisam Elsharkawi, an
American citizen, as he was on his way to board a flight to Saudi
Arabia from Los Angeles International Airport.56 CBP agents
demanded access to Elsharkawi’s cell phone, handcuffed him, and
detained him for four hours.57 Elsharkawi did unlock his cell phone,
which customs officials searched before releasing him without
charges.58

With very few exceptions, reduced civil liberties at the border
and ports of entry can be exploited without first establishing
probable cause or reasonable suspicion.59 Indeed, a
2009 DHS Privacy Impact Assessment of the border searches of
electronic devices stated that searches on the border “may be
conducted without a warrant and without suspicion.”60 In 2018,
CBP issued a new electronic device search directive, which
distinguished between basic and advanced searches.61 In order to
carry out an advanced search, which involves officers connecting
devices to external equipment for copying or analysis, officers
must first have reasonable suspicion. All searches that are not
advanced are basic, and do not require suspicion.62 While
conducting a basic search, officers “may examine an electronic
device and may review and analyze information encountered at the
border.”63

Moreover, White House officials have reportedly explored the
possibility of requiring visitors to disclose social media and
internet browsing details.64 So long as the administration considers
warrantless searches of electronic devices to be an essential part
of a counterterrorism strategy we will continue to see Americans’
civil liberties violated at the border and ports of entry.

Congress could address this issue by passing legislation
requiring probable cause for electronic device searches at border
crossings or ports of entry. In April 2017, Sen. Ron Wyden (D-OR)
introduced a bill cosponsored by Sen. Paul and Sen. Edward Markey
(D-MA) that would impose a warrant requirement for searches of
electronic equipment belonging to U.S. citizens and permanent
residents.65 Reps. Jared Polis (D-CO) and Blake
Farenthold (R-TX) introduced a House of Representatives version of
the bill.66 At the time of writing, neither of
these bills has made it out of their respective committees.

The Supreme Court could also resolve this issue. In 2014, the
Supreme Court recognized the privacy interest we have in cell
phones, holding that police need a warrant to search cell phones
belonging to arrested persons.67 And yet this protection does not
extend to federal agents at the border or ports of entry thanks to
the border exception to the Fourth Amendment. However, there is
currently a circuit spilt on the question of what degree of
suspicion CBP agents need before conducting advanced searches of
cell phones at ports of entry.68 If the Supreme Court decides to
resolve the circuit split, its justices could look to the 2014 cell
phone case as a privacy-preserving guide that takes into account
the vast amount of personal information most American adults carry
in their pockets every day.

Border Surveillance from the Sky

Outside of airports and checkpoints, federal immigration
officials in the field use a wide range of equipment to find
individuals who have crossed the border illegally. This equipment
inevitably collects information related to law-abiding
citizens.

In the air, DHS frequently uses drones, airplanes, helicopters,
and tethered aerostats-large unmanned airships attached to the
ground.69 In 2013, the New York Times
reported, “Lately it has become entirely normal to look up into the
Arizona sky and to see Blackhawk helicopters and fixed-wing jets
flying by. On a clear day, you can sometimes hear Predator B drones
buzzing over the Sonoran border.”70 Although drones are still a
relatively new and rare tool for state and local police
departments, CBP has been testing and using them on the
U.S.-Mexican border since 2004.71

During his presidential campaign, Donald Trump expressed
admiration for drone surveillance, saying, “I want surveillance for
our borders, and the drone has great capabilities for
surveillance.”72 Trump isn’t the only politician who is
a fan of surveillance drones. Sen. John Cornyn (R-TX) introduced a
bill in August 2017 that mandates border drone surveillance flights
24 hours a day, five days a week.73 But there’s little evidence this
would improve border security. A 2014 DHS Office of Inspector
General report found that DHS’s drone program cost an estimated
$12,255 per flight hour and failed to achieve its expected
results.74

Despite its poor track record with drones, DHS is looking to
expand its aerial surveillance capabilities. In the summer of 2016,
DHS asked companies to pitch them border patrol drone
technology.75 The solicitation notice specifically
mentions facial recognition capability as one of the desired
features of small, portable border patrol drones.76 So many
companies responded to the solicitation that DHS stopped accepting
submissions more than two months before their initial
deadline.77

CBP facial recognition drones are of particular concern given
that vast facial recognition databases are already in place and
that CBP is authorized to operate up to 100 miles from the border.
These databases don’t only include information about criminals and
wanted suspects: at least half of American adult citizens are
already in a law enforcement facial recognition network.78 These
networks include facial images captured as part of criminal justice
processing as well as drivers license photos from 16
states.79 The FBI’s facial recognition system
includes 411 million facial images of people collected from states’
department of motor vehicles, the State Department, the Department
of Defense, and the FBI’s own Next Generation Identification (NGI)
Interstate Photo System.80 If linked with local and state law
enforcement databases, CBP drones could be used for far more than
immigration enforcement, with the agency aiding with crackdowns on
petty traffic offenses such as parking violations.

It’s sensible to prepare for a time when facial recognition
drones become a common tool for CBP agents operating both at the
border and within their 100-mile enforcement zone. After all,
officials in the agency have explicitly expressed an interest in
the technology, which is rapidly improving. These preparations
should include restrictions on the data available to CBP agents
operating facial recognition drones. Facial recognition databases
should be purged of data unrelated to active investigations, wanted
persons, or persons with a history of violent crime. Without strict
restrictions on the facial recognition data available to CBP
drones, CBP will have the ability to gather information about many
innocent Americans’ whereabouts.

Intelligence Tools

Drones are not the only tools that could be used to uncover
information about American citizens. Mass collections of data
provide U.S. Immigration and Customs Enforcement (ICE) with a
massive ecosystem of information about immigrants and American
citizens alike.81 Using a range of databases and
intelligence tools, ICE agents can find targets, uncover a trove of
personal information, and hamper travel in order to facilitate the
kind of extreme vetting proposed by the Trump administration. These
tools, as well as calls to make ICE a member of the intelligence
community, put Americans’ privacy at risk.

“Collect it All” Databases. In June 2013,
former intelligence contractor Edward Snowden’s surveillance
revelations made front-page news around the world.82 Not long
after, one former intelligence official nicely summarized then
National Security Agency (NSA) director Gen. Keith Alexander’s
approach to intelligence: “Rather than look for a single needle in
the haystack, his approach was, ‘Let’s collect the whole haystack,’
… ‘Collect it all.’”83 Although tasked with immigration
enforcement rather than national security, ICE has adopted a
similar attitude, seeking access to gargantuan amounts of personal
information related to both Americans and immigrants.

One of the most notable intelligence systems is Investigative
Case Management (ICM), a network of databases. In 2014, ICE awarded
Palantir Technologies a $41 million contract to build and maintain
ICM.84 Palantir has a history of involvement
in government surveillance, playing a key role in developing a
number of law enforcement and national security tools, including
XKeyscore, a NSA internet surveillance program.85 According
to NSA documents leaked by Snowden, XKeyscore is one of the NSA’s
widest-reaching systems.86

ICM allows users to access a wide range of information from
federal agencies, including the Bureau of Alcohol, Tobacco,
Firearms and Explosives; the FBI; the Drug Enforcement
Administration (DEA); the Central Intelligence Agency; and the
Defense Intelligence Agency.87 Using ICM, ICE agents from Enforcement
and Removal Operations and the office of Homeland Security
Investigations can access extensive information from a collection
of private law enforcement databases, such as Black
Asphalt.88 A 2014 report revealed that Black
Asphalt allowed police to share information about innocent and
criminal motorists including addresses, identifying tattoos, and
Social Security numbers.89 Thanks to ICM, ICE agents now have
access to this database.

ICM is part of a project to upgrade TECS, a DHS
information-sharing system.90 Although most of the TECS data
algorithms and analysis tools are secret, there is one that is
known: the TECS Lookout.91 Immigration officials can issue a TECS
Lookout, allowing law enforcement to arrange to meet targets
leaving or arriving a port of entry.92

TECS Lookouts can also be used to harass American citizens. In
one notable case, immigration officials seized the laptop, camera,
thumb drive, and cell phone belonging to a volunteer with the
Bradley Manning Support Network as he was returning to the United
States from Mexico.93 Data from these devices were searched
over a seven-month period, with no evidence of criminal wrongdoing
discovered.94 Documents related to the search reveal
that ICE was acting with, and possibly at the request of, the
Department of Justice, the Department of State, and the Army’s
Criminal Investigative Division.95 As the Trump administration
continues to implement its restrictionist policy agenda, it will
inevitably infringe on innocent Americans’ privacy.

Using ICM, ICE agents can gather biometric, educational, and
employment information related to targets of
investigations.96 ICE agents also have access to work and
home addresses, phone numbers, and personal contacts.97 ICE
attorneys handling deportation proceedings use ICM.98

In the summer of 2017, the Trump administration solicited
private companies to help ICE build its “Extreme Vetting
Initiative.”99 Under the initiative, ICE officials
will utilize social media monitoring in order to generate at least
10,000 investigative leads each year.100 ICE also
expressed an interest in using machine-learning capabilities to
automate social-media snooping and determine whether a visa
applicant will be a “positively contributing member of
society.”101

Dozens of civil rights experts, engineers, computer scientists,
and mathematicians wrote to Acting Secretary of Homeland Security
Elaine Duke, pointing out that the current state of technology is
not advanced enough to identify the traits ICE wants to monitor,
and that the Extreme Vetting Initiative will be discriminatory as
well as unreliable.102 Fortunately, ICE abandoned plans to
use machine-learning technology to implement its Extreme Vetting
Initiative.103 However, ICE still plans to monitor
social media accounts by hiring a contractor to train and manage
personnel to conduct surveillance.104 This human-based snooping will
affect visa applicants as well as tourists, foreign students,
temporary workers, and the American citizens they interact with
online.105 Such surveillance will undoubtedly
chill these innocent parties’ speech once they know ICE is keeping
an eye on their social media activity.

That immigration intelligence tools include information about
American citizens is hardly concealed by government officials. When
asked how ICM ascertains citizenship, the government responded,
“U.S. Citizens are still subject to criminal prosecution and thus
are a part of ICM.”106 Subjects of criminal prosecutions are
not the only individuals whose information can make its way into
the ICM database. According to a DHS privacy impact assessment, ICM
contains extensive information concerning targets of
investigations, associates of targets, victims, witnesses,
informants, and third parties, such as employers and those who
report crimes.107

A few years after Palantir secured the ICM contract, the Obama
administration issued new rules allowing the NSA to share raw and
unfiltered intercepted communications from around the world more
easily with the DEA, FBI, and DHS.108 This is of particularly acute
concern, given that some ICE officials are pushing for the agency
to be part of the intelligence community.109

The intelligence community is made up of 17 of the federal
government’s most elite intelligence agencies, including 8 within
the Department of Defense, as well as elements of domestic
agencies, including the Drug Enforcement Agency and the Department
of the Treasury.110 Members of the intelligence community
can apply to NSA for access to feeds of raw, unfiltered
intelligence, much of which is gathered without a
warrant.111

If ICE were to join the intelligence community, the agency could
access more sensitive information about Americans’ private lives.
This will almost certainly lead to an increase in “parallel
construction.” Parallel construction is the process by which
federal agencies with access to intelligence intercepts send
information from those intercepts to state and local law
enforcement for criminal investigations.112

Here’s an example of how parallel construction works: the DEA
receives intelligence concerning a drug cartel’s plan to ship drugs
across the U.S. in a series of trucks.113 The DEA
then sends that information to local police officers, who keep a
lookout for the trucks and wait for a traffic infraction to justify
a pullover.114 The DEA directs local police not to
use the intercepted intelligence as evidence at trial.115 Instead of
using the information the DEA sent them, the local police
department constructs an alternate set of evidence, claiming that
they stopped the trucks for minor traffic violations. Using this
method, police can conceal the fact that the DEA informed them
about the trucks from defense attorneys-and sometimes from
prosecutors and judges.116 There is a strong argument that the
parallel construction strategy violates defendants’ right to a fair
trial. After all, at trial they will not hear an accurate account
of how the evidence against them was obtained. If ICE becomes a
member of the intelligence community, we should expect it to engage
in more parallel construction.

Since the Snowden revelations, Americans have grown accustomed
to their privacy being infringed in the name of national security.
However, policies aimed at strict immigration enforcement also pose
a serious a threat to our privacy. In its ramped-up search for
deportable aliens, ICE will gather vast amounts of personal
information about law-abiding American citizens. Although
technology cannot be put back into the proverbial box, policymakers
can ensure that ICE’s new technological capabilities are only used
consistent with constitutional protections.

Strict Immigration Enforcement Expands Federal Role in
Policing

The Trump administration’s immigration enforcement priorities
will impact American citizens as the federal government’s role in
local law enforcement grows. Secure Communities (SCOMM), a DHS-DOJ
information-sharing program, needlessly expands the categories of
removable immigrants while putting citizens at increased risk of
having family members deported. Section 287(g) of the U.S.
Immigration and Nationality Act, the federal program that deputizes
local police for immigration enforcement, risks worsening
police-community relationships. And crackdowns on so-called
sanctuary cities threaten federalism-a foundation of America’s
constitutional system-as well as the decentralized approach that
has traditionally guided American policing.

Secure Communities

Secure Communities is a recently revived data-sharing program
between the DOJ and DHS that allows federal authorities to check
arrested persons’ fingerprints in order to identify removable
aliens.117 The program began in 2008, but the
Obama administration abandoned it in 2014 after it had been the
subject of widespread criticism.118 Critics of SCOMM pointed out that
it had resulted in American citizens being improperly detained,
that it had split up families, and that it risked worsening police
racial profiling. The Priorities Enforcement Program (PEP) replaced
SCOMM in November 2014, narrowing the category of removal
aliens.119 Despite research showing that SCOMM
did not reduce crime rates, Trump scrapped PEP and reinstated SCOMM
via executive order on January 25, 2017.120

The detention of American citizens, separating American citizen
children from their parents, and the potential for increased racial
profiling, are high prices to pay for a program shown to have zero
impact on crime rates. The Trump administration should narrow the
category of removable aliens by reimplementing PEP, thereby
ensuring violent and dangerous aliens are the focus of immigration
enforcement efforts.

Under SCOMM, which contributed to almost 1,130,000
identifications and 325,000 arrests between 2009 and 2012, ICE can
request local police to hold an alien for 48 hours beyond their
release date if there is reason to believe that the alien is
subject to removal.121 Removable aliens include those charged
but not convicted of criminal offenses and those without a criminal
history.122 With PEP in place, ICE prioritized the
removal of aliens if they had been convicted of, rather than merely
charged, with a serious offense; were linked to gang activity; or
had been deemed a threat to national security.123

Despite DHS’ claim that SCOMM would improve public safety, the
program did not reduce crime rates.124 In
addition, as SCOMM progressed, aliens convicted of nonserious
crimes made up a higher share of removed criminal aliens than those
convicted of common serious crimes (including assault, robbery,
burglary, and sexual assault).125 By 2012, fewer than 12 percent of
removed criminal aliens were convicted of a common serious
crimes.126 According to a 2011 DHS task force’s
findings, “the impact of Secure Communities has not been limited to
convicted criminals, dangerous and violent offenders, or threats to
public safety and national security.”127

SCOMM had no noticeable impact on reducing crime rates, but it
did result in the detention of large numbers of American citizens
and lawful permanent residents.128 From FY2008 through to the start
of FY2012, ICE issued almost one million detainers.129 During
that time, detainers were issued for 28,489 legal permanent
residents as well as 834 American citizens.130 It is
illegal for ICE to hold American citizens on detainers, and of the
28,489 legal permanent residents issued detainers 20,281 had no
record of any criminal conviction.131

The numerous concerns associated with SCOMM prompted Obama to
abandon the program in 2014 and replace it with PEP.132

The resurrection of SCOMM means that ICE can now cast a wider
net, targeting aliens who have not committed a violent or property
crime and who are not a threat to national security. Detaining and
deporting migrants who have not committed a serious crime will not
only affect migrants, but their families as well. Many undocumented
immigrants have family members who are American citizens. A Pew
Study based on 2008 census data found that 37 percent of all
undocumented adults in the U.S. were parents of children who are
American citizens.133

SCOMM’s failure to achieve its stated goals strongly suggests
that it should be abandoned, and that the president should
reinstate PEP, which he abandoned in January 2017 via executive
order.134

Deputizing Local Police

The federal government can deputize local law enforcement for
immigration enforcement. This authority, which has undergone a
resurgence since Trump’s inauguration, risks worsening racial
profiling, is contrary to American law enforcement traditions, and
has a track record of worsening police-community relationships.

Section 287(g) of the Immigration and Nationality Act permits
DHS to enter into agreements with state and local law enforcement
agencies, thereby deputizing officers to enforce federal
immigration laws.135

In February 2017, 32 law enforcement agencies in 18 states had
287(g) agreements with ICE.136 Since then, the Trump administration
has more than doubled the number of 287(g) agreements. As of
October 2018, 78 law enforcement agencies in 20 states had 287(g)
agreements with ICE.137

All local and state law enforcement agencies that wish to take
part in the 287(g) program must enter into a Memorandum of
Agreement with ICE.138 Participating officers must complete a
four-week training program run by instructors from the Federal Law
Enforcement Training Center ICE Academy.139

Local and state officers participating in 287(g) are authorized
to verify whether someone at a correctional facility is a criminal
alien by conducting interviews and checking biographic information
against DHS databases.140 They can also use the ICE’s database
and Enforcement Case Tracking System, allowing law enforcement
officers to generate detainers and to enter data related to aliens
in custody.141 This “jail enforcement” model is
distinct from the abandoned task-force agreements that, up until
the end of 2012, allowed 287(g) officers to question and arrest
suspected immigration lawbreakers encountered in the
field.142 All current 287(g) memorandum
agreements are jail-enforcement agreements.143 However,
in his first week in office, Trump signed an executive order
expanding the 287(g) program to include task-force
agreements.144 The order states that the DHS
secretary shall authorize local and state police “to perform the
functions of immigration officers in relation to the investigation,
apprehension, or detention of aliens.”145

An expansion of 287(g) programs that includes the previously
abandoned task-force model runs the risk of worsening racial
profiling.

The concerns associated with 287(g) are well established, having
been cited from the program’s very beginning.146 Widespread
allegations of racial profiling spurred a Department of Homeland
Security’s Office of the Inspector General investigation in 2010,
resulting in a report that was very critical of the
program.147

Perhaps the most infamous instance of 287(g) racial profiling
was noted in a 2011 DOJ Civil Rights Division’s investigation into
the Maricopa County, Arizona, Sheriff’s Office (MCSO).148 The
investigation noted that Police Executive Research Forum interviews
with Maricopa officers revealed that “a number of law enforcement
officers in Maricopa County … believe that MCSO has enforced
immigration laws in a way that has poisoned the relationship
between law enforcement and Latinos, hindering general law
enforcement efforts within the Latino community.”149 The
Department of Justice had an expert on statistical racial profiling
analysis examine MCSO traffic stops. According to the report,
“Latino drivers were between four to nine times more likely to be
stopped than similarly situated non-Latino drivers.” Shortly after
the release of the report, DHS withdrew from its 287(g) agreement
with MCSO.150

The DOJ Civil Rights division also issued a report in 2012 on
Alamance County, North Carolina, Sheriff’s Office (ACSO), which was
also participating in 287(g), finding that ACSO engaged in a
“pattern or practice of unconstitutional policing.”151 The report
highlighted the disparate impact that ACSO’s policing practices had
on Latinos-including citizens-with the sheriff unequivocally
telling officers to target Latinos for arrests and checkpoint
stops.152 ICE canceled ACSO’s 287(g) agreement
shortly after the report’s release.153 Analysis
of the 287(g) program in North Carolina shows that it did not
reduce crime rates in the state.154

The Leadership Conference on Civil and Human Rights, citing
examples of racial profiling across the country, characterized
287(g) as a tool for targeting Hispanics, saying that it “has been
used by state and local law enforcement authorities to stop,
detain, question, and otherwise target individual Hispanics and
entire Hispanic communities in a broad way to enforce federal
immigration laws, thus racially profiling vast numbers of
Hispanics-most of whom are U.S. citizens or legal residents-as
suspected undocumented immigrants.”155

Civil liberties groups and law enforcement officials note that
the type of racial profiling in police work that can be sparked by
287(g) negatively impacts policing. Speaking before the House of
Representative’s Committee on Homeland Security in 2009, Montgomery
County, Maryland, Chief of Police Thomas Manger said that some of
the largest police departments hadn’t embraced 287(g) because it
would harm cooperation with immigrant communities, thereby
undermining community policing.156 This effect was mentioned by the
Obama administration’s report on 21st Century Policing, which noted
that, “whenever possible,” local police should not take part in
immigration enforcement.157

Children who are American citizens are often victims of 287(g).
Just as with SCOMM, 287(g) threatens to split up families that
include nonviolent undocumented immigrants. A 2011 Applied Research
Center report found that, in counties where local police have
entered into a 287(g) agreement, children in foster care were, on
average, 29 percent more likely to have detained or deported
parents than in other counties.158

Adult citizens are also at risk of 287(g) abuses. In 2015, an
18-year-old, Diego Rojas, filed suit against the Los Angeles County
Sheriff’s Department, claiming that officers participating in
287(g) threatened to continue holding him in custody if he didn’t
admit to being born in Mexico after he’d been arrested on suspicion
of burglary.159 According to Rojas, he was only
released after his sister showed officers a copy of his birth
certificate, which confirmed that he was born in the United
States.160

According to Northwestern University political science professor
Jacqueline Stevens, ICE memoranda issued since 2008 and obtained
under the Freedom of Information Act “suggest that U.S. citizens
are especially likely to be unlawfully held by ICE as a result of
so-called 287(g) programs.”161 Not all citizens in 287(g)
jurisdictions are as lucky as Rojas, who was released. Some have
been deported erroneously.162 We should expect more such unlawful
detentions as the Trump administration takes steps to expand
287(g).

This expansion of 287(g) is contrary to American law enforcement
traditions. Unlike many other developed nations, the United States
does not have a centralized law enforcement authority. This is
appropriate, given the size of the country and the diversity of its
communities. While there will always be police officers and
departments engaging in misconduct, America’s decentralized
policing system remains preferable to a centralized one.
Regrettably, some police departments could have 287(g) agreements
thrust upon them without their consent thanks to lawmakers and
officials who are intent on bucking America’s law enforcement
traditions.

In early 2017, Kansas lawmakers introduced bills in the Senate
and House of Representatives that would require the Kansas Highway
Patrol to enter into a 287(g) agreement.163 The bills
were introduced on behalf of Kansas Secretary of State Kris Kobach,
a key Trump adviser on immigration policy.164 Speaking
about the Kansas bills, Kobach mentioned that, while the Kansas
governor already has the authority to order the Highway Patrol to
enter into a 287(g) agreement, “Governors come and go,” adding,
“This puts it in Kansas law and says that the people of Kansas want
it to be done.”165

The growth in the number of 287(g) agreements and the revival of
the task-force model will have a negative impact on policing,
especially in communities with a significant Latino population. A
2013 survey from the think tank PolicyLink found that almost half
of Latinos were less likely to contact police if they were victims
of crime because of fear that police will ask them or people they
know about their immigration status.166 This fear
doesn’t only apply to undocumented migrants; almost a third of
U.S.-born Hispanics also report that they would be hesitant to
contact the police if they had been the victim of a
crime.167 Less cooperation with police means
more crimes that go unsolved.

There is already some evidence that minority communities have
been hesitant to report serious crimes in the wake of Trump’s
inauguration, with officials in a number of cities noticing a
decline in Latinos reporting crime.168 In March
2017, Los Angeles Police Department Chief Charlie Beck noted that
Latino reports of sexual assault had declined 25 percent compared
to the number reported in 2016.169 Houston’s police chief reported
that from January to March 2017 there had been a 42.8 percent
decrease in rape reports by Hispanics compared to the same time
period in 2016.170 The non-Hispanic community decreased
their rape reporting by only 8.2 percent. Although it is too early
to definitively claim that Trump’s administration is responsible
for this fall in crime reporting, it is noteworthy-and hardly
surprising-given the research on Latino’s hesitancy to contact the
police if they fear that they or someone they know could be
deported.171

Effective policing requires that citizens report crimes and have
confidence in police officers. The revitalization and expansion of
the 287(g) program would not only run the risk of worsening racial
profiling, it would also breed mistrust of police among the
communities they serve. More fundamentally, the 287(g) program
inappropriately morphs local police officers into federal
immigration agents. DHS should scrap all existing 287(g) agreements
and not enter into any new agreements.

Sanctuary Cities

On the campaign trail, candidate Trump repeatedly railed against
so-called sanctuary cities, which he and his allies characterized
as lawless holdouts where dangerous undocumented aliens
flourish.172 In keeping with his repeated campaign
pledge to put an end to sanctuary cities, Trump and his allies have
taken aim at federal funding of sanctuary cities and argued that
these cities are violating federal law.173 Attacks on
sanctuary cities raise federalism concerns that have important
implications on whether local voters get to change their local law
enforcement policies. Fortunately, the Constitution allows local
jurisdictions to implement sanctuary policies.

“Sanctuary city” is not a legally defined label. Rather, it is a
term used to describe a city where local policymakers have chosen
not to assist the federal government in enforcing immigration laws
through informal agreements or codified policy. Depending on how
it’s defined, there are anywhere from a few dozen to hundreds of
sanctuary jurisdictions in the United States.174

Trump targeted sanctuary cities on January 25, 2017, when he
signed an executive order that prohibited the federal government
from issuing non-law-enforcement grants to agencies that don’t
comply with a federal statute banning local governments from
limiting cooperation with immigration authorities.175

But what motivated Trump to issue the executive order in the
first place? On the campaign trail, Trump emphasized the supposed
public safety risks associated with sanctuary policies: “We will
end the Sanctuary Cities that have resulted in so many needless
deaths.”176 Trump’s allies have expressed similar
sentiments. Before President Trump nominated him to be attorney
general, then senator Jeff Sessions introduced the tendentiously
named Protecting American Lives Act, a bill seeking to withhold
funds from sanctuary cities.177 In an August 2017 column for
Breitbart, Kobach wrote that sanctuary policies “have had
deadly consequences for U.S. citizens.”178

Attorney General Sessions described sanctuary policies as
“lawless” in an August 2017 speech, and National Review
editor Rich Lowry wrote in July 2015 that San Francisco’s sanctuary
policies are “meant to create a zone of lawlessness.”179 In early
2018, DHS Secretary Kirstjen Nielsen told the Senate Judiciary
Committee that DOJ was considering criminally charging officials in
sanctuary jurisdictions.180

Despite what critics of sanctuary cities sometimes claim, there
is little evidence that sanctuary cities suffer from more crime
than other cities.181 Sanctuary policies do not have a
statistically significant effect on crime rates.182

Nor are sanctuary city policies lawless. It is not the job of
states and localities to enforce federal law. The Tenth Amendment
protects states from forced cooperation with federal law
enforcement, with its anti-commandeering doctrine banning the
federal government from commandeering state legislatures or law
enforcement officers. This doctrine allows state and local
governments to refuse to enforce federal law.183

Many sanctuary city policies are implemented at the department
and city level.184 Shortly after the 2016 election, the
Los Angeles Police Department announced that it would continue its
policy of forbidding officers from stopping people solely to
confirm immigration status.185 A Chicago ordinance bars police
officers from inquiring after an individual’s immigration status or
citizenship.186

Why would dozens, if not hundreds, of state and local
jurisdictions choose not to cooperate with federal immigration
enforcement? In some jurisdictions there are political benefits for
local lawmakers and police officials who adhere to sanctuary
policies. But there are also sound law enforcement reasons for
declining to enforce immigration law. Sanctuary policies help
police, allowing them to secure cooperation from crime victims and
witnesses who don’t wish to disclose their immigration status or
the immigration status of a friend, spouse, or family member.

There are numerous examples of sanctuary policies aiding police
departments’ relationships with the communities they serve. In
2006, the New Haven, Connecticut, police chief issued an order
banning officers from asking about residents’ immigration status,
with an exception for criminal activity investigations.187 Despite
initial disagreement within the department about the need for the
order, many officers later reported that the policy improved
relationships with the immigrant community. As one officer put it,
“we have done an incredible job of getting them to overcome their
fear of the police.”188

As was noted above, a significant portion of Hispanics would be
less likely to contact police if they were the victims of crime out
of fear that officers will investigate their immigration status or
that of someone they know.189 In cities with a large Hispanic
community, that can have a major negative effect on policing.

Local officials in some of these jurisdictions have embraced
their city’s sanctuary city designation. Shortly after Trump’s
election, Chicago Mayor Rahm Emanuel said, “[Chicago] always will
be a sanctuary city.”190 In January 2017, San Francisco Mayor
Edwin Lee echoed that sentiment: “We are a sanctuary city now,
tomorrow, forever.”191

That some local lawmakers embrace their sanctuary city status
with pride made confrontations with the federal government
inevitable in the wake of Trump’s executive order.192

Section 9(a) of Trump’s January 2017 executive order requires
the attorney general and DHS secretary to withhold
non-law-enforcement grants from jurisdictions that do not comply
with 8 U.S.C. § 1373.193 Section 1373 forbids state and local
governments from imposing restrictions on local officials sending
information about the immigration or citizenship status of any
person to federal immigration agencies.194

In April 2017, a judge on the United States District Court for
the Northern District of California granted San Francisco’s and
Santa Clara County’s motions to enjoin Section 9(a).195 The
federal government asked the court to reconsider the injunction,
which the court declined to do.196 In November 2017, the same judge
permanently blocked the enforcement of Section 9(a), writing, “The
Executive Order attempts to use coercive methods to circumvent the
Tenth Amendment’s direct prohibition against
conscription.”197

There is a strong argument that Section 1373 is
unconstitutional.198 After all, Supreme Court precedent
forbids the federal government from commandeering local
officials.199 In June 2018, Michael Baylson, a
Senior United States District Judge of the U.S. District Court for
the Eastern District of Pennsylvania, issued a decision regarding
Jeff Sessions’s policy of withholding funds from sanctuary
jurisdictions.200 Judge Baylson found that the Supreme
Court’s ruling in Murphy v. NCAA, a sports gambling case,
made Section 1373 unconstitutional.201

Section 1373 bans prohibitions on police departments sending
immigration status information to federal authorities, so a
jurisdiction can both have sanctuary policies and be in compliance
with Section 1373 if it doesn’t collect such information in the
first place.202 Seattle and San Francisco officials
made this argument in their lawsuits against the Trump
administration.203

A 1999 case left the policy of police not requesting immigration
status information available to local lawmakers.204 The United
States Court of Appeals for the Second Circuit held that Section
1373, did not, on its face, violate the Tenth Amendment’s
anti-commandeering doctrine.205 However, the ruling did leave room for
sanctuary policies, as it didn’t address policies forbidding police
officers from inquiring about immigration status.206

The lack of information-sharing that Section 1373 seeks to
address is not the only issue in sanctuary policy disputes between
the federal government and state and local governments. Even if
Section 1373 were constitutional, there are issues associated with
Trump’s executive order, which mandated that jurisdictions that
don’t comply with the statute be ineligible for non-law-enforcement
grants.207

The Constitution grants spending powers to Congress, not the
president.208 In his ruling enjoining the Executive
Order, Judge Orrick of the United States District Court of the
Northern District of California noted that its “attempt to place
new conditions on federal funds is an improper attempt to wield
Congress’s exclusive spending power and is a violation of the
Constitution’s separation of powers principles.”209

Trump’s allies in Congress could impose grant restrictions on
sanctuary jurisdictions. But even this approach is fraught with
constitutional issues. Chief Justice Roberts, writing the majority
opinion in the first Supreme Court challenge to the Affordable Care
Act, noted that the threat of withholding funds from states that
didn’t expand Medicaid was an unacceptable “gun to the head” of
states.210 If Congress authorized withholding all
non-law-enforcement grants from sanctuary jurisdictions it’s
unlikely such conditions would survive the inevitable legal
challenges. Courts would surely rule that such a move is
unconstitutionally coercive.

Nonetheless, the Trump administration’s position is unambiguous,
and jurisdictions with sanctuary policies will continue to face
pressure from the federal government until the Supreme Court
addresses the constitutionality of Section 1373 and similar
statutes. In the meantime, lawmakers should embrace federalism when
it comes to policing. Law enforcement has traditionally been a
local issue, and it should remain that way. San Francisco officials
know more about what policies are best for San Franciscans than
Trump administration officials in Washington. Federal agencies can
still enforce federal law in sanctuary cities, but it should be up
to local officials and police officers to determine how much
cooperation is appropriate.

Conclusion

Overly aggressive enforcement of immigration laws erodes
localism and threatens the civil liberties of American citizens and
immigrants. The current administration’s immigration policies are
set to worsen this trend.

This worrying development can be halted by protecting citizens’
privacy at the border and ports of entry, restricting the use of
vast databases, scrapping 287(g) agreements, reinstating the
Priorities Enforcement Program, and not pressuring local officials
in sanctuary cities to cooperate with federal immigration
authorities. Local control of law enforcement and privacy
safeguards will help protect Americans from the civil liberties
violations that accompany a federal government intent on aggressive
immigration law enforcement.

NOTES

2 No Sanctuary for Criminals Act,
H.R. 3003, 115th Cong. (2017); Exec. Order no. 13,768, Enhancing
Public Safety in the Interior of the United States, January 25,
2017, http://www.presidency.ucsb.edu/ws/index.php?pid=122518;
and Exec. Order no. 13,769, Protecting the Nation from Foreign
Terrorist Entry into the United States, January 27, 2017.

36Martinez-Fuerte, 428
U.S. 543 at 428 (Powell, J. majority): “We further believe that it
is constitutional to refer motorists selectively to the secondary
inspection area at the San Clemente checkpoint on the basis of
criteria that would not sustain a roving-patrol stop. Thus, even if
it be assumed that such referrals are made largely on the basis of
apparent Mexican ancestry, we perceive no constitutional
violation.”

90 John Maulella and Jonathan R.
Cantor, “TECS System: Platform,” Privacy Impact Assessment no.
DHS/CBP/PIA-021, Department of Homeland Security, August 12, 2016,
https://www.dhs.gov/sites/default/files/publications/DHS-PIA-ALL-021%20TECS%20System%20Platform.pdf.
“The TECS (not an acronym) System is the updated and modified
version of the former Treasury Enforcement Communications System.
TECS is owned and managed by CBP. TECS is both an
information-sharing platform, ‘TECS Platform,’ which allows users
to access different databases that may be maintained on the
platform or accessed through the platform, and the name of a law
enforcement system, ‘TECS,’ that includes temporary and permanent
enforcement, inspection, and operational records relevant to the
antiterrorism and law enforcement mission of CBP and numerous other
federal agencies that it supports.”

110 Office of the Director of
National Intelligence, “Members of the IC,” https://www.dni.gov/index.php/what-we-do/members-of-the-ic:
“The U.S. Intelligence Community is composed of the following 17
organizations: two independent agencies-the Office of the Director
of National Intelligence (ODNI) and the Central Intelligence Agency
(CIA); eight Department of Defense elements-the Defense
Intelligence Agency (DIA), the National Security Agency (NSA), the
National Geospatial-Intelligence Agency (NGA), the National
Reconnaissance Office (NRO), and intelligence elements of the four
DoD services; the Army, Navy, Marine Corps, and Air Force. Seven
elements of other departments and agencies-the Department of
Energy’s Office of Intelligence and Counter-Intelligence; the
Department of Homeland Security’s Office of Intelligence and
Analysis and U.S. Coast Guard Intelligence; the Department of
Justice’s Federal Bureau of Investigation and the Drug Enforcement
Agency’s Office of National Security Intelligence; the Department
of State’s Bureau of Intelligence and Research; and the Department
of the Treasury’s Office of Intelligence and Analysis.”

114 Shiffman and Cooke, “U.S.
Directs Agents to Cover Up Program.” Unfortunately, the Supreme
Court has developed Fourth Amendment doctrine in such a way that
police officers can easily pull over any driver they want to
detain. See Barbara C. Salken, “The General Warrant of the
Twentieth Century? A Fourth Amendment Solution to Unchecked
Discretion to Arrest for Traffic Offenses,” Pace Law
Review 17 (1997): 97. “The innumerable rules and regulations
governing vehicular travel make it difficult not to violate one of
them at one time or another. ‘Very few drivers can traverse any
appreciable distance without violating some traffic regulation’
[citing B. J. George, Constitutional Limitations on Evidence in
Criminal Cases (Ann Arbor, MI: Institute of Continuing Legal
Education, 1966), p. 23]. The police officer’s unconditional power
creates the danger that the discretion to arrest for a traffic
violation will be exercised as a pretext to enable the officer to
search.”

117 Under SCOMM, when the
fingerprints of arrested persons are sent to the FBI, they are
automatically checked against the DHS Automated Biometric
Identification System (IDENT) database. Any matches are then sent
to ICE’s Law Enforcement Support Center (LESC) facility which
confirms the arrestees’ identity and checks to see if the records
include immigration violations. If ICE agents at LESC conclude that
an arrestee is removable, they notify the local Enforcement and
Removal Office (ERO). If the arrestee is a priority, the ERO then
issues a detainer, requesting that the arresting agency hold the
arrestee for 48 hours beyond the normal release time. See [Authors’
names redacted], “Interior Immigration Enforcement: Programs
Targeting Criminal Aliens,” Congressional Research Service Report
no. R42057, August 27, 2013,
https://www.everycrsreport.com/files/20130827_R42057_5acf4cf13604c53bf05f26b92b1c71d6c88162c2.pdf.

120 See information provided on
the ICE web page: Immigration and Customs Enforcement, “Secure
Communities,” Department of Homeland Security, https://www.ice.gov/secure-communities.
See also, Exec. Order no. 13,768, Enhancing Public Safety in the
Interior of the United States.

121 Researchers correctly point
out that these figures should be treated with some caution, as
Secure Communities does not in and of itself make arrests. An
individual arrested, for instance, by a 287(g) participant officer
and identified via Secure Communities could be counted as both a
287(g) arrest and a Secure Communities arrest. See [Authors’ names
redacted], “Interior Immigration Enforcement”; and Immigration and
Customs Enforcement, “Priority Enforcement Program,” Department of
Homeland Security, https://www.ice.gov/pep.

132 Civil libertarians have
claimed that SCOMM increased racial profiling against Hispanic
Americans. These claims should be treated with caution as research
on the effects of SCOMM did not find evidence that the program led
to discriminatory policing. Nonetheless, Hispanics may be less
likely to report crimes because of fear of deportation or
profiling. Although there has been scant evidence of this in the
past, more recent research suggests that may be changing. See
Suzanne Ito, “No Security in ‘Secure Communities,’” ACLU, August
19, 2010,
https://www.aclu.org/blog/mass-incarceration/no-security-secure-communities;
and Treyger, Chalfin, and Loeffler, “Immigration Enforcement,
Policing, and Crime,” p. 313.

138 Immigration and Customs
Enforcement, “Delegation of Immigration Authority Section 287(g).”
According to ICE, the “agreement must be signed by the Executive
Associate Director for Enforcement and Removal Operations, and the
governor, a senior political entity or the head of the local agency
before trained local designated immigration officers are authorized
to enforce immigration law.”

174 As of November 2017, the
Center for Immigration Studies, which opposes increased
immigration, included about 150 cities and counties on its map of
“Sanctuary Cities,” meaning jurisdictions where policies are in
place that “obstruct immigration enforcement and shield criminals
from ICE.” Bryan Griffith and Jessica Vaughan, “Maps: Sanctuary
Cities, Counties, and States,” Center for Immigration Studies, July
27, 2017, http://cis.org/Sanctuary-Cities-Map.
The Immigrant Legal Resource Center lists 633 counties where
officials have implemented various restrictions on state and local
police cooperation with federal immigration enforcement efforts.
Entire states prevent local law enforcement from taking part in
federal immigration enforcement. For example, Oregon law prohibits
the use of state resources for immigration enforcement. In
addition, California and Connecticut restrict police holding people
in jail on ICE detainers. See Lena Graber and Nikki Marquez,
“Searching for Sanctuary: An Analysis of America’s Counties and
Their Voluntary Assistance with Deportations,” Immigrant Legal
Resource Center, December 2016,
https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final_1-min.pdf;
and Jasmine C. Lee, Rudy Omri, and Julia Preston, “What Are
Sanctuary Cities?” New York Times, February 6, 2017,
https://www.nytimes.com/interactive/2016/09/02/us/sanctuary-cities.html?mcubz=0&_r=0.

175 Exec. Order no. 13,768,
Enhancing Public Safety in the Interior of the United States.

188 Hoffmaster et al., “Police
and Immigration.” For more information on departments that have
maintained trust and cooperation in immigrant communities thanks to
sanctuary policies, see Bill O. Hing, “Immigration Sanctuary
Policies: Constitutional and Representative of Good Policing and
Good Public Policy,” U.C. Irvine Law Review 2 (2012): 247,
http://scholarship.law.uci.edu/ucilr/vol2/iss1/8.

192 Exec. Order no. 13,768,
Enhancing Public Safety in the Interior of the United States.

193 Exec. Order no. 13,768,
Enhancing Public Safety in the Interior of the United States.

194 8 U.S.C. § 1373(a) reads as
follows: “Notwithstanding any other provision of Federal, State, or
local law, a Federal, State, or local government entity or official
may not prohibit, or in any way restrict, any government entity or
official from sending to, or receiving from, the Immigration and
Naturalization Service information regarding the citizenship or
immigration status, lawful or unlawful, of any individual.” See 8
USC 1373: Communication between government agencies and the
Immigration and Naturalization Service,
http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1373&num=0&edition=prelim.

202 In fact, in his March 2017
speech Attorney General Sessions cited guidance from the Department
of Justice’s Office of Justice Programs that states, “Section 1373
does not impose on states and localities the affirmative obligation
to collect information from private individuals regarding their
immigration status, nor does it require that states and localities
take specific actions upon obtaining such information.” Office of
Justice Programs Guidance Regarding Compliance with 8 U.S.C. §
1373, July 2016, https://www.bja.gov/funding/8uscsection1373.pdf.

204City of New York v.
United States, 179 F.3d. In New York v. United
States, the Second Circuit considered the constitutionality of
Section 1373 and a similar but slightly narrower statue, 8 U.S.C. §
1644. At issue was a 1989 executive order issued by New York City
Mayor Edward Koch (and reissued by his successors David Dinkins and
Rudolph Giuliani) that banned city officials from sending
immigration status information to federal immigration authorities,
with some rare exceptions.